Saturday, August 25, 2007

The Star Tribune reports that Faegre & Benson lawyer Keith Radtke, 37, was shot and wounded in his Lakeland home. Despite being shot, Radtke helped subdue a 23-year-old Circle Pines man who broke into the Radtke family home while being chased by authorities. Authorities wanted the man in connection with an interstate shootout. Radtke is reported in good condition. For more, see the Strib article, "Circle Pines man held in shootout, fight with homeowner."

Editor's Note: In Monday's issue, Minnesota Lawyer will run an interview with Peter Swanson, a local attorney/ reservist who will soon be serving in Iraq. We are making the entire interview available to our blog readers as a special blog extra.

From the boardroom to the desert

By Dan Heilman

Minnesota Lawyer/ Aug. 27, 2007

When Minneapolis attorney Peter Swanson enlisted in the Army at age 20, he probably didn’t realize that it would dovetail with a career in law. But 19 years later, Swanson, until recently a corporate counsel for TCF Corp., will get a chance to practice a form of law that most attorneys know little about, while also serving his country.

A major in the Army Reserves, Swanson has been called up and is currently in training in Texas with the Army’s 381st Brigade Liaison Detachment. The unit, teamed up with a military police brigade, will be deployed in Iraq next month to work on detainee operations.

The assignment will present challenges and opportunities that seldom come up in the corporate law world, but Swanson is looking forward to it.

On the eve of his deployment, Swanson took the time to answer Minnesota Lawyer’s questions about what he’ll be doing in Iraq, the challenges he expects to face and whether he’ll resume his conservative blog, Swanblog 2.0, while stationed overseas.

How did your military career coincide with your legal career?During college and law school, I was in the enlisted reserves. I was a private, then a specialist, then a sergeant. After law school, I became a lieutenant, then a captain in the active, full-time Army. I went into private practice for a year, and during that time I was on inactive reserve — I didn’t go on weekends or during the summer. I was then on active duty for about five years, until 2000. After that, I was inactive until May, when I was activated again. So the two areas of my life have co-existed for quite a while.

What will be the sequence of events as you prepare to depart?The first was joining my unit in San Jose. Then we flew to El Paso, to Fort Bliss, to a mobilization site. Then it’s 62 days of training, just like any other troops.

Our unit is a Brigade Liaison Detachment — we have a doctor, military police, a combat engineer, a lawyer and some other specialties. We go in and augment the brigade leadership. But the training we get at El Paso is the same as the training any unit would get, even though our unit is 12 people — we don’t have any vehicles or tanks or equipment a regular unit might have.

From there, as I understand it, we’ll fly a commercial airline owned by the military to Spain, where we’ll refuel. We’ll proceed to Kuwait, and eventually go to Baghdad. We’ll probably be at Camp Victory, and will probably work with the MP brigade that is in charge of Abu Graib.

What will you be doing there?We’ll be working with internees. My unit is EPW/I — enemy prisoners of war/internees. So that encompasses determining somebody’s status under the Geneva Convention; discipline for those who are enemy prisoners of war, because they can be disciplined under the Uniform Code of Military Justice; and just making sure that unfortunate things don’t happen, like some of the things that happened previously at Abu Graib.

My position, as it was explained to me, will be command judge advocate, so I’ll also be the lawyer for the command. That would involve doing legal work for the troops, although there are so many lawyers there that there might be a specific group that’s assigned to do that. That might mean wills, powers of attorney, credit problems, things like that.

As lawyer for the command, I’ll have a dual role. I might defend soldiers, and I might also prosecute cases or advise the command.

Let’s say there’s an issue with payment of a debt. That’s handled under a provision the UCMJ has called Dishonorable Failure to Pay a Debt. I’ll have to be careful about conflicts of interest. I can’t advise clients on how to handle a debt on one hand and then go on to prosecute them over that same debt. I can’t write a will for someone who disinherits his wife, and then prosecute him for fraternization or adultery on the other hand.

When you’re a command judge advocate, you’re expected to be able to do all those things, but hopefully, there will be so many lawyers that those conflicts don’t come up.

Do you know how many other lawyers will be working with you?Not yet. We’ll be in summer training with another MP brigade from New York. With the MP brigade we’re augmenting, there could be as many as three lawyers specifically for the command.

At Camp Victory, or wherever our base camp ends up being, for a division-sized element, you could have as many 20 or 30 lawyers, and there are several division-sized elements. So there’ll be a lot of lawyers.

Have they briefed you at all on what kind of caseload to expect?Not really. But I’ve learned a lot about the unit from the training I’ve had so far … and the NCO I’ve been grouped with — who has essentially been my paralegal — has been [in Iraq], and has explained what I can expect.

I think there will be a lot of Article 5 tribunals — determining whether somebody is an unlawful combatant, or what status he has under the Geneva Convention. Also, there will be hearings about whether someone can be released, and what level of command authority is to dictate that.

Are you leaving behind a family?I’m single, and I don’t have any kids. In fact, among the 12 in my detachment, only one is married. So that’s fortunate. It’s like they used to do with the Pony Express — they had orphans and single people work on it so there wouldn’t be too many families left behind.

You’re in a pretty good position at TCF. How will your work be covered?At TCF, we have 11 lawyers in Minnesota alone. In a corporate counsel position, there’s always someone to pick up the slack. It’s not like a solo practitioner, where you have to uproot and hand your clients to somebody. Even if the lawyer you give them to says he’ll give them back, it’s ultimately up to the client. The re-employment rights of someone in a solo practice are pretty minimal. You can have a similar problem in a firm setting. But in a corporate counsel position like mine, it really works out well. Everybody’s been pretty selfless about it.

Have there been any significant professional challenges to going away?Not a lot. I have to think about Continuing Legal Education. The last time I deployed, in 1998, I was right on the deadline, so I had to quickly send in my CLE affidavit, because I knew I wouldn’t have access to those records where I was going. Depending on how long you’re deployed, the JAG school in Charlesville, Va., lets you take professional development classes while you’re on the road.

Also, I have to think about things like bar dues — if I wait a while, I can get cheaper bar association dues, because military personnel get a discount. So I’m thinking about those kinds of things. I’ve been stationed previously in Kansas and in Washington state, so I know what it’s like to do a lot of that stuff by mail.

Will you still be doing your blog (Swanblog. 2.0) from Iraq?I will be. I have to inform the command that I’ll be doing it, and I’m going to be writing from a different domain so that I don’t have to worry about something I wrote three years ago that might be misconstrued. Depending on what kind of law I practice, some things I’ve written in the past might be used to make a decision on where to put me. If I wrote something that’s harsh on criminals and I want to work as a defense lawyer, I don’t want that out there.

I’m not going to write about anything operational. I’m not going to write about day-to-day Army gripes — that strikes me as self-indulgent, even though it wouldn’t be prohibited. Complaining about the food or my bosses would be bad form.

Friday, August 24, 2007

About 60 percent of Minnesota's solo-small firm practitioners make less than $100,000 per year, while approximately 5 percent make more than $250,000 -- at least according to the results of the MSBA Law Practice Management and Marketing Section’s “Solo-Small Firm Economic Survey 2007.”

The results of the survey were revealed at the "Strategic Solutions for Solo & Small Firms" conference in Duluth earlier this month. St. Cloud attorney Michael Ford and Minneapolis attorney LaVern Pritchard, founder of the LawMoose legal search portal, presented attendees with a summary of the results.

Of 5,000 randomly selected Minnesota practitioners in firms of one to 10 lawyers, 339 responded to the survey, which was sent out in late July. Some of the other interesting tidbits that emerged from the survey include:

--18.4 percent practice in the family law area (the largest group represented);--38.9 percent spend between one and four hours per week on management/administrative duties;--67 percent charge $200 per hour or less;--45 percent do not have a retirement plan; and-- about 44 percent said they were “mostly satisfied” with their careers.

While touring Colombia's lively capital city of Bogotá last week, I narrowly avoided falling through a busted sewer grate. No barricades or orange cones, nothing.

"I wonder if you can sue for that," mused my journalist traveling buddy.

Well, the short answer is yes. But resolution could take longer than Gabriel García Márquez's pension check in No One Writes to the Colonel.

The backlog in Colombia's judiciary is epic, to say nothing of its dizzying array of four separate but somewhat equal courts. As a result only the most tragic civil claims, namely those involving death, ever bother to get filed in this country of 44 million people.

That isn't to say that the judges or staff are in any way incapable. As Latin America's oldest democracy, Colombians are well-versed in law and order. But even the strongest institutions can fail when forced to compete for scarce resources amid deep-rooted corruption and serious public safety issues.

Yet there's cause for hope, a Colombian friend tells me. The country's revised 1991 constitution calls for a transition from its Napoleonic legal system to the modern adversarial approach that we all know and love. It's a tremendous overhaul that is still being ratified by the states, but once complete, many say the sistema penal acusatorio will streamline and expedite the court's work.

Plus, the new constitution created a department of tutela, or guardian, to promptly adjudicate human rights violations — an unfortunate necessity in a country burdened by drug-running guerrillas and paramilitary groups (or narcoterrorists, if you prefer Bush-speak).

So who knows? Maybe sometime soon the judiciary will become so effective and efficient that Colombian politicians, too, will find sport in bashing trial lawyers — there's no place like home.

But in the meantime, just watch your step in Bogotá. If a sewer grate doesn't get you, the taxis surely will.

The Palacio de Justicia houses Colombia's four courts — Supreme Court of Justice, Council of State, Constitutional Court and Superior Judicial Council — along the Plaza de Bolívar in Bogotá. (Courtesy of Bogotá Tourism)

Thursday, August 23, 2007

Bruce MacEwen over at Adam Smith, Esq. used this opportunity to chat with Short about law firm initiatives such as work/life balance, mentoring and flextime that help create a welcoming environment for many women.

Robins, Kaplan Miller & Ciresi attorney Phillip Sieff just advised me that the trial lawyers working pro bono on bridge cases have received offers of free assistance from some court reporters and one forensic expert. That's outstanding.

Few residents in the areas of southeastern Minnesota hit by flash floods last weekend had flood insurance on their homes. In the two hardest-hit counties -- Winona and Houston, total population 70,000 -- only 196 flood insurance policies have been issued for homes and businesses, according to the Federal Emergency Management Agency.

Insurance experts are predicting that many homeowners in the area who had homeowners insurance but not flood insurance will end up defaulting on their home loans. The cost will be absorbed by lenders, and the homeowners will have their credit ratings adversely affected by the defaults.

There are laws on the books that provide residents in especially flood-prone areas financial incentives to move away or elevate their homes. As the cost of rebuilding Minnesota’s flooded areas starts to mount, banks, mortgage lenders and insurers could start lobbying for compulsory flood insurance in areas such as southeastern Minnesota. Should homeowners in such areas, where floods are severe but rare, be legally compelled to own flood insurance?

Tuesday, August 21, 2007

The next time you feel pressed by a member of the Minnesota bench, keep one thing in mind: It could be worse; you could practice in Ohio.

A public defender in the Buckeye State recently found himself arrested after he refused to comply with a judge's order that he proceed to trial on a case he had been assigned the day before. Not wanting to try the case unprepared, the lawyer would not go forward and the irate judge had him hauled away for contempt.

Outraged criminal defense lawyers in Ohio and across the country have reportedly rallied around the defender. (For more, see "Judge has unprepared lawyer arrested" on the ABC News site.)

It sounds to me like this defender got a raw deal. I suggest we send him a hot dish with a file in it forthwith. ... (Actually, the defender was released after being detained five hours.)

All joking aside, this case does illustrate an important point: How overburdened the public defender system is. Fortunately, in Minnesota, our Legislature takes these concerns seriously. In their last session, lawmakers approved funding for 34 new public defenders. While this does not completely alleviate the problem locally, at least it's a step in the right direction.

Some of Minnesota’s trial lawyers have announced their intention to represent bridge collapse victims pro bono, and I applaud their generosity. But some of these lawyers are from small shops, and even Robins Kaplan Miller & Ciresi doesn’t grow money on trees (well, maybe it does). No expert witnesses, investigators or other litigation support people have, to my knowledge, stepped forward to say they will work for free.

How can the rest of the legal community support the pro bono lawyers? Should we? Are these cases more important than other pro bono cases that cost money? Are some events to raise funds to pay the costs in order? Should the Minnesota Association for Justice members start washing cars on Saturdays?On a related note, actor Gary Anderson has announced his interest in supporting the pro bono effort. (MSBA convention attendees will remember him from his excellent portrayal of Clarence Darrow.) Anderson recently told me that he is returning to Minnesota in December and would like to donate a performance as a fundraiser for the litigation costs. I’ll be doing more to get this information to the trial lawyers and see if they want to make that happen. What else can we do?

Monday, August 20, 2007

Several local plaintiffs' lawyers recently set the bar buzzing when they made a highly unusual offer -- they would handle the cases of victims from 35W bridge collapse without taking a fee. (Under a typical fee agreement in a personal-injury or wrongful death case, the client would agree to pay the lawyer anywhere between a third and 40 percent of the amount recovered.)

The offer to take the cases pro bono surfaced not long after it had been announced that the Minneapolis personal-injury powerhouse firm of Schwebel Goetz & Sieben had signed up several bridge-collapse victims as clients. The Schwebel firm is not part of the pro bono effort and will represent its clients pursuant to a standard contingent-fee agreement.

One of the firms spearheading the pro bono effort is Minneapolis-based Robins, Kaplan, Miller & Ciresi, which, ironically, pocketed one of the biggest fees in state history a few years back when it got $440 million for handling the state's $6 billion tobacco settlement. The Robins firm has already signed up several several bridge victims as clients, none of whom it is charging a fee.

The pro bono representation offer has the potential to generate some positive PR for trial lawyers -- or at least avoid some negative PR. There are plenty of individuals out there -- some of whom have already posted on this blog -- poised to cast lawyers as vultures seeking to capitalize on the bridge tragedy.

On the other hand, while it would be easy to criticize the Schwebel firm for not waiving its fee, personal injury lawyers do have a right to make a living. And these are likely to be very complicated cases involving a web of immunity, damage-cap and statute-of-limitations issues. Plus, while what happened to these people is horrific, many individuals who suffer equally terrible injuries or deaths still have a legal fee extracted from their or their families' recoveries. Why shouldn't we be waiving fees in those cases as well?

I don't have any answers here, but think the situation raises some pretty interesting issues. (Minnesota Lawyer has a full coverage of the pro bono offer in this week's issue.)